Based on reports from the police department, Adult Protective Services of Sussex County (APS) opened an investigation into the well-being of then eighty-five-year-old Sally DiNoia, who was living in her home with her adult son, John. Sally’s husband Paul had passed away, and John had been Sally’s primary caregiver for several years. .

APS’s investigation continued for many months and was actively opposed by John, who filed federal litigation to impede it. Although John’s federal court lawsuit was summarily dismissed, other legal actions followed.

APS, through the Office of the Sussex County Counsel, filed a verified complaint seeking to declare Sally incapacitated and for the appointment of a guardian over her person and property under the Adult Protective Services Act. Through the Sussex County Surrogate’s Office, a law firm, Kelly & Ward, LLC (Kelly), was appointed as counsel for Sally. A temporary guardian was also appointed for Sally, all powers of attorney were suspended, and John was enjoined from interfering with his mother’s care and treatment.

An order was entered adjudging Sally an incapacitated person and appointing her daughter, Jennifer DiNoia Magnifico, as the guardian of her person and estate. The restraints against John were continued.

Kelly then filed an application for for a court order directing APS to pay his counsel fees, which was opposed by Sussex County Counsel. After hearing oral argument, the trial court granted Kelly’s application, and entered an order awarding counsel fees.

In support of his decision, the trial judge found that “[John] was an active interferer with this action from the moment it began. And, without the steps taken by Kelly to meet that interference, Kelly’s client would have suffered even more than she did.” Further, the judge stated:

[I]t is not equitable on the one hand for APS not to carry out all of its statutory duties, leave them to Kelly, and then object to payments to Kelly for his fees when APS took no action, and then being critical of Kelly for having done that, when the [c]ourt is of the view that it was absolutely essential to [Sally’s] welfare that Kelly take action in that regard.

The court also found that APS failed to conduct the financial investigation and analysis of Sally’s assets and debts as required by the New Jersey Court Rules and ignored requests to produce records. Sally and her husband had minimal assets. Thus, the judge found compelling reasons for appellant to pay Kelly’s fees.

APS appealed. On appeal, the appeals court first considered the standard of review, ruling that, because the trial court in the case had authority to award attorneys fees, a court on appeal should not disturb the trial court’s decision unless there has been a clear abuse of discretion.

Ultimately, the appeals court ruled that the fee shifting which directed APS  to pay counsel fees of a court-appointed counsel was warranted in the case because of the exceptional efforts expended by Kelly in this case. The appeals court held that:

[John] was an extraordinary impediment to [the] care for his mother and ultimate relief in this case. The record includes no fewer than six or eight and probably as many as a dozen applications that—at the [t]rial and [a]ppellate levels that [John] filed along the way, all of which it was necessary for Mr. Kelly to respond to. [Also,] APS protracted the litigation by not supplying the financial analysis and investigation required by [the Act.]

The case is attached here –

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